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No. 08-1335

 

In the Supreme Court of the United States

MICHAEL J. ASTRUE,

COMMISSIONER OF SOCIAL SECURITY, PETITIONER

v.

BRANDY WILSON

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

ELENA KAGAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

 

In the Supreme Court of the United States

 

No. 08-1335

MICHAEL J. ASTRUE,

COMMISSIONER OF SOCIAL SECURITY, PETITIONER

v.

BRANDY WILSON

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

 

The court of appeals in this case held that attorney fees awarded under the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412(d), cannot be reduced to satisfy a debt owed by the prevailing party because, in the court's view, EAJA fees "are owned by * * * the attor neys who represented [that party]." Pet. App. 2a. The court explained that its decision in Ratliff v. Astrue, 540 F.3d 800 (8th Cir. 2008), petition for cert. pending, No. 08-1322 (filed Apr. 28, 2009), resolved "the same issue" as is presented in this case. Pet. App. 1a. The court concluded that, "[f]or the reasons stated in [the] opin ion" in Ratliff, the EAJA award in this case should not have been reduced to satisfy respondent's debt. Id. at 2a. Because this petition raises the same issue as the pending petition in Ratliff, it should be held pending the Court's disposition of the Ratliff petition.

Respondent does not appear to dispute that, if the petition in Ratliff is granted, the petition here should be held pending the Court's disposition of that case. See Br. in Opp. 1, 7 (Opp.). Respondent contends, however, that the Court should deny certiorari in Ratliff, and that there is no basis for granting review here if the petition in Ratliff is denied.

1. In arguing that the petition in Ratliff should be denied, respondent embraces (Opp. 9-10) Ratliff's argu ment that this Court's review should await further de velopments in the court of appeals. As explained in the government's reply brief in Ratliff (at 5-7), eight courts of appeals have addressed the relevant issues, and an entrenched circuit split has resulted. This Court's re view is warranted in this context. Respondent likewise invokes (Opp. 11-19 & n.3) the arguments advanced in the Ratliff brief in opposition that the court of appeals' decision is correct. For the reasons stated in the govern ment's reply brief in Ratliff (at 9-11), those arguments are without merit.

Unlike Ratliff, respondent attempts (Opp. 15 n.4) to reconcile the Eighth Circuit's rulings here and in Ratliff with this Court's decisions in Evans v. Jeff D., 475 U.S. 717 (1986), and Venegas v. Mitchell, 495 U.S. 82 (1990). Respondent correctly observes (Opp. 15 n.4) that neither Jeff D. nor Venegas presented the question whether an attorney fee award could be offset to collect a pre-exist ing debt owed by the prevailing party. Those cases es tablish, however, that the entitlement to a fee award, at least under 42 U.S.C. 1988, belongs to the prevailing party rather than to her attorney. See Pet. at 11-12, Ratliff, supra (No. 08-1322). That holding casts serious doubt on the Eighth Circuit's determination that "EAJA attorneys' fees are awarded to prevailing parties' attor neys," Pet. App. at 4a, Ratliff, supra (No. 08-1322)-a determination that was central to the court's ultimate conclusion that the fee awards in Ratliff and in this case were not subject to offset to collect the claimants' pre- existing debts.

Respondent argues (Opp. 15-17) that attorneys will refuse to represent Social Security disability claimants if EAJA award payments are subject to offset to collect the claimants' pre-existing, delinquent debts. That ar gument lacks merit. As an initial matter, it is not clear to what extent attorneys make representation decisions based on the potential for an EAJA recovery. See Pierce v. Underwood, 487 U.S. 552, 573-574 (1988) (ex plaining that "it is quite impossible to base [an economi cally viable law] practice upon the acceptance of non monetary cases in which there is fair prospect that the Government's position will not be 'substantially justi- fied'" because a "lawyer will rarely be able to assess with any degree of certainty the likelihood that the Gov ernment's position will be deemed so unreasonable as to produce an EAJA award"). But even assuming attor neys make representation decisions based on the pros pect of collecting EAJA awards, there is no reason to think that the current majority rule will create a general deterrent to attorneys' representation of disability claimants-and no evidence to suggest it has in fact done so. Lawyers can readily determine whether poten tial clients owe debts subject to offset. Potential clients receive advance written notice of any debt subject to collection by offset, see 31 U.S.C. 3716(a)(1); 31 C.F.R. 285.1(h)(1), 285.5(d)(6)(ii)(A), and the Department of the Treasury will disclose such information to an attorney if the potential client provides a signed Privacy Act waiver. And if the client owes a debt subject to offset, the client has the opportunity to seek administrative review of the debt obligation and to agree to a written repayment plan that will prevent an offset from occur ring, thus protecting any EAJA recovery from reduc tion. See 31 U.S.C. 3716(a) (requiring notice of those opportunities); 31 C.F.R. 285.1(h), 285.5(d)(6)(ii)(A).

In any event, the statute is clear and presumably reflects Congress's best judgment about how to accom modate the interests at stake. Congress has direc ted that federal officials "shall offset" federal pay ments to collect specified delinquent debts, including "any amount" owed to the United States and past-due child-support obligations enforced by a State, unless those payments are specifically exempted pursuant to statutory authority. 31 U.S.C. 3701(b)(1) and (2), 3716(c)(1)(A); see, e.g., 31 U.S.C. 3701(d), 3716(c)(1)(C) and (3)(B) (exemptions). Congress has not exempted EAJA award payments from offset. Accordingly, be cause EAJA fees and other expenses are "award[ed] to a prevailing party," 28 U.S.C. 2412(d)(1)(A), they are subject to offset to collect a pre-existing debt owed by that party. The court of appeals erred in holding other wise.

2. Respondent contends (Opp. 1-2) that, if the Court denies the government's petition for a writ of certiorari in Ratliff, it should deny certiorari here as well. If the Court denies the petition in Ratliff because it concludes that the question presented is not of sufficient impor tance to warrant this Court's review, or that the Court's consideration of the relevant issues would benefit from further development of the law in the courts of appeals, those reasons would apply equally to the petition in this case.

The respondent in Ratliff has also argued that sev eral features distinct to that case make it an unsuitable vehicle for resolution of the question presented. See Br. in Opp. at 12-18, Ratliff, supra (No. 08-1322). For the reasons stated in the government's reply brief in Ratliff (at 2-5, 7-9), those arguments lack merit. Nevertheless, if the Court concludes that the question whether EAJA awards are subject to offset to collect prevailing parties' debts warrants review by this Court, but that Ratliff is not an appropriate case in which to resolve that issue, the Court should grant plenary review in this case.

* * * * *

For the foregoing reasons and those stated in the petition, the petition for a writ of certiorari should be held pending the Court's disposition of Astrue v. Ratliff, No. 08-1322 (filed Apr. 28, 2009), and then disposed of as appropriate. In the alternative, the petition for a writ of certiorari should be granted.

Respectfully submitted.

ELENA KAGAN
Solicitor General

AUGUST 2009